Alexander Wright, partner in the Court of Protection team discusses some of the issues that lead to a change in deputy and the steps that are necessary.
Having a professional deputy involved in your life, or a family member’s life, can be hard for people to get used to. Why wouldn’t it be? Suddenly there is a solicitor involved in your life making major decisions about your finances, or the finances of someone close to you.
Whether it is as a result of an accident, disease, or medical negligence, no one really wants a solicitor involved in their lives that much. I respect that.
Yet unfortunately for some, the involvement of a solicitor acting as a deputy in your life is a life-long thing and you have to have a relationship that works.
At Boyes Turner LLP Ruth Meyer and I act as professional deputies for many people, all of whom we know and have a personal relationship with. All of them would prefer not to have a deputy, and would rather that their loved one had mental capacity. So, the starting point for the relationship with a deputy is an acceptance of the need for a solicitor in their life that they would rather not have. However, in time families appreciate the necessity and see the benefits of having an experienced and caring professional deputy.
What causes a relationship breakdown to breakdown?
There are many reasons why a relationship with a deputy breaks down. It’s not always someone’s fault, and frequently it’s caused by a communication difficulty. Differing expectations, poor response times, rushed replies, not listening to family, are all things that can contribute towards a breakdown in the relationship between a deputy and a family. Sometimes it may be a personality clash. People get on with different types of personalities.
A deputy has to be able to work with the family, and not just the person who is represented by the deputy. In nearly all cases I am a deputy for a child or young adult. This only works if I have a good relationship with the child’s parents - the people who know the child the best and the people the child lives with. The parents need to be comfortable having me in their home too and deputies have a duty to consult with family.
Why would you change the Deputy?
A deputyship appointment is a personal thing, even where the deputy is a company (Trust Corporation). You rely on the deputy to understand you, get to know you, and to involve you in decision making. But, since it is a personal appointment, you might not always see eye to eye with your deputy. Some people like directness and bluntness. They know where they stand with this. Others find that approach difficult to deal with. No deputy/person/solicitor is the right fit for all people or all families. That’s why we insist on meeting a client personally before taking on a deputyship. They need to feel comfortable working with us and us with them.
Occasionally a relationship breaks down because the family member disagrees with a decision that a deputy has made.
So, why does it get to that point where one decision can lead a family member to want to change deputies? There are a few reasons, but the main reasons are:
- Poor communication or response times;
- Lack of involvement or relationship where the family don’t really know or even meet the deputy, and don’t know the person making decisions;
- Staff turnaround, where you get a new person dealing with the matter every year;
- When the deputy makes a decision without consulting fully with friends, family or professionals involved; and
- When the deputy makes a big decision that the family object to without referring it back to the Court for a decision.
Steps to changing a Deputy
Ruth Meyer and I are contacted on a fairly frequent basis to see if we would be willing to take over as deputies from another professional. We have a 6-step approach, which I’ve set out below.
Step 1 – honest conversation
We will go through the reasons for the relationship breakdown. Where we think the deputy has acted properly we will be honest and say so. Where we would probably make the same decision we will say so. Sometimes a deputy is right to say “no”, for example if something is outside their powers, or if there is evidence that the request is not in the persons best interests.
Step 2 – pros and cons of changing deputy
We will establish how the life of the client would be improved by a change in deputy, and discuss the disadvantages of changing the deputy. The change in deputy would have to be in the best interests of the client (the person who has a deputy) not just the family member.
Step 3 – attempt to repair the relationship
Every attempt should be made to encourage the repair of the relationship. Changing deputies can cost a lot of money. We will contact the deputy, make them aware of the issues and ask them to have a meeting with the family in an attempt to repair the relationship. If the deputy is a trust corporation, there might be another director that could step in as the lead.
Step 4 – ensure consensus to avoid disputes
If it turns out that the relationship with the deputy has indeed irretrievably broken down, we will write to the deputy to ask if they agree and ask them to confirm that they will not object to the application. This should avoid costly proceedings at the Court.
Step 5 – make the application
We will submit the application in good time, because all the while the existing deputy remains in place and we have no decision making powers. The existing deputy will be a Respondent to the application, and see a copy of all the paperwork. If they have said they will not object to the application the process should be a smooth one.
Step 6 - respond to any issues raised by the current deputy
The existing deputy would normally submit a statement during the application process setting out any outstanding matters that need to be addressed, including any that have contributed towards the breakdown in the relationship. This should be welcomed because it makes sure that everyone is aware of all of the issues, including the Court and the new deputies. The existing deputy would also complete a form confirming whether they consent to the application. The Court can then decide if further directions/responses are required, or if the change in deputy can be granted. The Court may choose to make decisions on specific issues itself so that the new deputies do not inherit them.
What is “Deputy Shopping”?
Sometimes a family member is looking for a deputy that will accede to their wishes. We will not be able to assist them if that is the case. This is what I call “Deputy Shopping”; the practice of looking for deputy who just says ‘yes’ to everything with no questions asked. Court of Protection specialists would not agree to controversial requests in order to secure an instruction. Where this is suspected the existing deputy has a duty to highlight this to the Court if an application is made. It must be in the client’s best interests (the person named on the Deputyship Order) to change deputies.
To find out more about professional deputyships, or to speak to a member of our Court of Protection team click here.